By Chandra Jayaratne –
Additional Secretary to the Constitutional Assembly
Parliament of Sri Lanka.
A Special Experts Committee to Finalize Constitutional Reforms
I address this note consequent to a media report stating that the Prime Minister, following an appeal by the Leader of the Opposition, has instructed the special Experts Committee of the Constitutional Assembly to finalize the Constitutional Reform proposals, taking account of the six experts sub-committee reports already received.
I take the liberty of making this repeat submission, setting out in summary 10 points, which I firmly believe to be essential areas of reform, critical in assuring socio economic good governance and thus must be reflected within the finalized constitutional reforms submissions of the special Experts Committee:
1. Reforms Defining the Independence, Role, Responsibility and Accountability of Chief Accounting Officers/Ministry Secretaries
There is a need to clearly define and separate by way of a Constitutional amendment, the role, responsibilities and accountability division between the head of department (the Ministry Secretary /Chief Accounting Officer) and the political head (called the ‘executive authority’ being either the Minister or the Deputy Minister or even the Cabinet of Ministers).
The executive authority is responsible for setting out policy choices and desired outcomes, while the chief accounting officer develops essential concepts in support of selected policy choices, plans and implements the policy /guidelines set by the political authority. It is the accountability of the Chief Accounting Officer to take all executive decisions in the implementation of plans; and take all other steps and issue executive orders, which leads to the realization of the outcomes. For this purpose, the Chief Accounting Officer assumes responsibility for delivering the outputs defined in the departmental budget. Thus the Constitution must empower the chief accounting officers by unambiguously conferring on them a clear set of responsibilities. The chief accounting officer prepares the departmental budget (specified in terms of measurable objectives) for the Minister to approve and present to the legislature for voting. The chief accounting officer is then responsible for implementing and managing the budget.
In pursuit of above essential reform:
a) Amend the provisions of Article 52(2) of the Constitution to ensure that, the Ministers will henceforth only engage in setting policy; and will not discharge the expanded responsibilities of direction and control endowed in them post the 1972 Constitution; and thus ensure that Ministers will leave all responsibilities connected with the supervision, direction and control of the Ministries, Departments and other Institutions under the Ministry to the Secretary of the Ministry, who will henceforth be duly accountable for such expanded responsibility.
b) Amend the provisions of Article 52(3) of the Constitution whereby, the Secretaries of Ministries will not be changed with every change of the Cabinet of Ministers; or with the change of a Minister.
c) Amend the provisions of Article 55(2) of the Constitution to assure that, the appointment, promotion, transfer, disciplinary control and dismissal of all Heads of Departments shall, vest in the Cabinet of Ministers, but be subject to the transparent and due independent evaluation and recommendations of the Public Services Commission and the Constitutional Council.
2. Correctly Represent the Duties and Functions of the Auditor General, determined based on the English version of the Article 154 of the Constitution, thereby amending the wrong and restrictive interpretation given in the Sinhalese version.
3. In Chapter VIII of the Constitution dealing with the Cabinet of Ministers and Secretaries, include new provisions to require that
a) all members of the Cabinet ( including the President where he holds office concurrently as a Minister) and the Secretaries of Ministries be required to declare to the Secretary to the Cabinet, a complete schedule of personal and family ( family being the spouse, children, step children, brothers, sisters, parents and in-laws ) interests in businesses, professions, contracts, etc and all related party entity interests, connected to the member and his family; and undertake to make a declaration, where ever a conflict of such interests arise or is deemed likely to arise, in connection with any state business, appointment or transaction, either directly or indirectly connected to the Minister and/ or his family. The Secretary to the Cabinet shall duly maintain the relevant Register of Interests.
b) All members of the Cabinet ( including the President where he holds office concurrently as a Minister) and the Secretaries of Ministries to undertake annually by sworn affidavit submitted to the Secretary to the Cabinet, that they will not receive, collect, claim, make arrangements for accommodation/collection, or facilitation either directly or indirectly, of any payments, funds, investments, assets, transfer and holding of beneficial interests, benefits, perks, gratuitous receipts in kind or otherwise, from the State, any Ministry, Department, Public Corporation or Company of the state, directly or indirectly, whether fully or partly owned by the State, or any private entity or any other form of corporate entity, local or overseas, with whom the state has any business or other connections; and that any such benefits received or held to the beneficial interests will be duly reported to the Secretary to the Cabinet and copied to the Auditor General, by the Minister and or his family members and by any individual or institution making such benefits available to the Minister or family
c) Any member of the Cabinet( including the President where he holds office concurrently as a Minister) or any Secretary who knows or has reason to believe from information or other matters connected to or obtained by him in the course of carrying on his responsibilities and functions of office, that any or regulation for the time being in force has been violated or is likely to be violated or that any property owned or held in beneficial interest by any person has been derived or realized from any unlawful activity, any such member of Cabinet or any Secretary shall disclose his knowledge or belief as soon as is practicable, to the Secretary to the Cabinet who shall deal with that information in terms of the laws, regulations and rule of law enforcement stipulations.
4. Amend Article 55 (2) to read as “The appointment, promotion, transfer, disciplinary control and dismissal of all Secretaries, Heads of Department and any persons holding office at the level of an Ambassador, High Commissioner, Director, Chief Executive, Departmental Head (including a position of a Deputy or Assistant Departmental Head) of the State, a Ministry, a Department, Public Institution, Public Corporation, Public Private Partnership Company or Regulatory Body, shall, vest in the Cabinet of Ministers upon such appointment promotion, transfer, disciplinary control and dismissal being reviewed and recommended by the Constitutional Council.
5. Annual Certification by Chief Accounting Officers/Heads of Functions
In order that all key Chief Accounting Officers and Office Holders specified in Article 52 (4) of the Constitution duly discharge their Accountability for Public Finances, State Assets and Liabilities management, upholding principles of transparency, good governance in compliance with codes of ethics and conduct befitting their office and in compliance with laws and regulations require such Chief Accounting Officers and key Public Officials to file before the Secretary to the Cabinet a Certificate annually, in the form of affidavits stating that they together with their key supporting Officers, have in the course of the discharge of their duties and responsibilities of office have to the best of their knowledge and belief acted as “fit and proper” persons.
6. Include a new Article to require that any Independent Commission or Public Institution created by or under the Constitution including but not restricted to the Elections Commission, the National Audit Commission, Public Services Commission, Judicial Services Commission, National Police Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Parliamentary Commissioner for Administration, National Procurement Commission, The Finance Commission, the Constitutional Council, as well as the Central Bank of Sri Lanka, should be duly empowered to make Specific or General Recommendations to the Cabinet of Ministers, on matters of priority or national interests and in advancing the rule of law, good governance and the sustainable socio economic growth and prosperity of Sri Lanka: and where such recommendations are not effectively implemented by or under the directions of the Cabinet, the Cabinet of Ministers shall table the reasons for such non compliance in Parliament, not later than 3 months from the date of receipt of such recommendation.
7. Establishment of a National Environmental Commission
It is recommended that a new Chapter be added to the Constitution, before Chapter XX to deal with the establishment of a National Environmental Protection Commission for the purposes and functions of protecting the environment and ecology, assuring sustainability long term and enable Sri Lanka meet with its international obligations arising from the United Nations Framework Convention on Climate Change
8. Principles of Public Life, Codes of Conduct Ethics and Best Practices of Governance
With the intent to foster good governance and ensure that such style of governance is established as a part of an embedded culture, it is proposed that the a new Constitutional provision be introduced requiring all ministers, members of legislatures, high post candidates, chief accounting officers, Heads of Departments, and public officials, to compulsory adopt a set of Principles of public life, in the form of a codes of conduct and ethics, and be compulsorily required to submit annually affidavits of compliance and confirmation of being ‘fit and proper persons’ making transparent and accurate submission of assets and liability declarations
9. Independent Budget Office and Fiscal Research Support Parliamentary Budget, Public Accounts and Public Enterprise Committees
It is recommended that a Parliamentary Budget Office be set up reporting to the Secretary General of Parliament to efficiently and with effectiveness support the expanded in scope budget processes to be implemented and the Central Bank be appointed to function as an Independent Fiscal Institution (An Institution conforming to the Principles set out by the OECD for Independent Fiscal Institutions) and the latter be required to provide four reports annually on the
a) Management of Public Finances and Public Debt in the preceding year-In the first quarter
b) Socio Economic Outcomes of Key National Resource Allocations of the preceding Year- In the Second Quarter
c) Economic Outlook –Current and Future -Beginning of Third quarter
d) A Preliminary Analysis of the Budget – end of the fourth quarter
Parliamentary Budget, Public Accounts and Public Enterprise Committees be created by Constitutional Amendment, with their powers and functions duly specified ;which functions will include inter alia, the requirement that these Committees with the facilitation of the Parliamentary Budget Office and with the assistance of independent technocrats, professionals and academics be required,
to examine in detail the budgets tabled by Ministries, Departments, Independent Public Officers/ institutions, Public Enterprises etc, and submit a report to the Parliament;
(a) On economies and improvements, in organization, efficiency, effectiveness or administrative reform, consistent with the policy underlying estimates, may be effected
(b) Suggest alternative policies in order to bring efficiency, economy and effectiveness in administration
(c) Examine whether the budgetary allocations are accurately computed and well laid out within the policy/assumptions implied in the estimates and outcomes as targeted
2. Suggest future improvements in estimating and presenting such estimates to Parliament
3. To receive and review quarterly comparison of estimates with actual and variance analysis and a commentary on achievements and outcomes
4. Examine the Auditor General’s Reports and reports on any special value for money, Triple ‘E’ , Systems and Management Audits
5. Any Parliamentary Questions or Parliamentary Petitions submitted for clarification and action by members of the public
6. Review of Post Audits of key spends of capital and revenue nature
7. Review Project Feasibilities and Justification pre commitment of significant capital and revenue spends and new investment projects of public enterprises
8. Any special reports on Compliance Failures, Legal Claims and Risk Management Reports issued by the Auditor General
10. Integrity, Capability and Independence Commitments of Specialized Officers
In order to assure the independence and transparent Good Governance the number of Constitutional Council members should increased to include a retired Supreme Court Judge and a Retired High Post Holder each from the Foreign Service and Sri Lanka Administrative Service; and the Council be required to develop and publish a check list for validation of any appointee as “fit and proper person”, and appointments voted on individually and not as a team; and the list of appointments to require Constitutional Council concurrence to include the appointees as the Governor of the Central Bank, the Monetary Board, Secretaries and High Diplomatic Office holders.
I trust you will kindly facilitate the review of this submission by the Special Experts Committee in finalizing their recommendations to the Constitutional Assembly
The general principles of public life incorporate the following;
Holders of public office should act solely in terms of the public interest.
Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.
Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.
Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.
Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.
Holders of public office should be truthful.
Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.
cc. Speaker of Parliament Secretary to the President, Auditor General, Prime Minister, Dr. Jayampathy Wickramaratne, Constitutional Council, Leader of the Opposition, Mr. M. A Sumanthiran and Media